Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Gardner (Decided January 13, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that sometimes you are better off without an expert.

In Gardner, the Defendant was arrested for DWI after having a minor traffic accident.  Her blood test result was a .137% alcohol concentration level and she chose to take the case to trial.  

The state called four witnesses in its case-in-chief: two state troopers, who investigated the collision and observed Gardner’s behavior; a forensic scientist employed by the Minnesota Bureau of Criminal Apprehension (BCA), who tested Gardner’s blood sample; and one of the other drivers involved in the collision. One of the state troopers testified that he provided an HCMC phlebotomist with a BCA-approved blood-draw kit. The BCA forensic scientist testified on cross-examination that she did not know the procedures used by the HCMC phlebotomist who drew Gardner’s blood sample.

After the state rested its case, Gardner called only one witness, Thomas Burr, who was qualified as an expert witness on the subject of forensic toxicology. Burr questioned the circumstances and procedures of the blood draw, including the credentials of the HCMC phlebotomist who drew Gardner’s blood and the equipment used, facts that Burr testified are “essential... to ensure that it’s an accurate sample.” Burr testified that he did not know whether the phlebotomist used an alcohol-based swab or an appropriate needle or whether the collection tubes were sterile and intact. He testified that the blood-test results could be inaccurate if the phlebotomist who drew the blood sample was not qualified, did not use an appropriate needle, used an alcohol-based swab, or used a compromised collection tube. He further testified that the blood-test result could be unreliable because the blood sample took six days to reach the BCA by mail.

After Gardner rested her case, the state called the phlebotomist as a rebuttal witness. Gardner objected, arguing that the phlebotomist’s testimony was not proper rebuttal evidence and would be unfairly prejudicial. The prosecutor explained that the phlebotomist’s testimony would rebut Burr’s expert testimony, which had emphasized the absence of testimony by the phlebotomist. The district court overruled Gardner’s objection on the ground that rebuttal testimony was appropriate. The phlebotomist testified about her qualifications, the procedures she followed during the blood draw, and the equipment she used during the blood draw, including the fact that she used a non-alcohol-based swab and a needle smaller than that provided in the BCA-approved blood-draw kit.

The Defendant was convicted of DWI and on appeal asserted the district court was wrong to allow the phlebotomist to testify as a rebuttal witness.  The Minnesota Court of Appeals, however, disagreed noting:

"The subject of rebuttal evidence is governed by a rule of criminal procedure: “The prosecutor may rebut the defense evidence, and the defense may rebut the prosecutor’s evidence.” Minn. R. Crim. P. 26.03, subd. 12(g). Rebuttal evidence offered by the state is defined as evidence that “explains, contradicts, or refutes the defendant’s evidence.” State v. Swaney, 787 N.W.2d 541, 563 (Minn. 2010)"

While Gardner contended that "the district court erred on the ground that the state generally may present rebuttal evidence only after [a defendant has] presented unexpected testimony in his or her case" the Court of Appeals in its decision points out that "surprise" is not a requirement of rebuttal.

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"Gardner further contends that the state did not have a “good reason” to withhold the testimony of the phlebotomist during its case-in-chief and that the state attempted to “game the order of trial in order to gain a strategic advantage.” She further contends that her trial attorney, when developing trial strategy, relied on the state’s decision not to call the phlebotomist in its case-in-chief. These contentions appear to assume that the state has an obligation to introduce all of the evidence it possesses during its case-in-chief, or that the state has an obligation to foresee or predict the evidence that a defendant will introduce during the defense case. To the contrary, the rule and the caselaw allow the state to listen to the defendant’s evidence and assess its persuasiveness and then consider offering rebuttal evidence. The key question is whether the state’s proffered rebuttal evidence “explains, contradicts, or refutes the defendant’s evidence.” Swaney, 787 N.W.2d at 563. In this case, the state’s rebuttal evidence satisfies that test. "

In this case, the phlebotomist was listed by the state as a possible trial witness.  When the state failed to call said witness in its case-in-chief, it should have been obvious they were holding back, waiting for the defense expert to testify.  A better move would have been to cross-examine the BCA expert concerning potential problems with the blood draw and then rest without calling any witnesses.

Moral Of The Story: Sometimes less is more.

If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.